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Commission Issues Temporary Emergency COVID-19 Rule Covering First Responders and “Front Line” Employees
Effective April 13, 2020, the Illinois Workers’ Compensation Commission amended Rule 9030.70, expanding the Commission’s Rules of Evidence to include a rebuttable presumption for first responders and front-line workers exposed to COVID-19. Once the Rule is filed with the Secretary of State, it will remain in place for 150 days.
The first part of the emergency rule, (a)(1), explicitly indicates that a worker’s injury or period of incapacity resulting from exposure to COVID-19 will be rebuttably presumed to have arisen out of and in the course of employment. Furthermore, the exposure will be rebuttably presumed to be causally connected to the hazards or exposure of the first responder’s/front line worker’s employment.
The second part of the Rule, (a)(2), very broadly identifies first responders and front-line workers. Not only does the rebuttable presumption apply to police officers, firefighters and medical personnel, but also applies to all crucial personnel identified in Governor Pritzker’s Executive Order 2020-10. This long list of employees includes gas station attendants, grocery store employees, hotel workers, restaurant workers (who provide food for off-premises consumption), cannabis production workers, financial institutions, critical trades and professional services. The list is extensive, and essentially includes any worker covered under any of the essential businesses identified in the Governor’s recent Executive Order.
The new action is reminiscent of Section 6(f) of the Act but differs significantly from that Section of the Act. Section 6(f) provides a rebuttable presumption of compensability under the Act for Firefighters, EMT or paramedic who suffer from certain conditions such as vascular and heart conditions, hypertension, tuberculosis, cancer, bloodborne pathogens and lung/respiratory conditions. Pursuant to Section 6(f), the employee must have been employed as a firefighter, EMT or paramedic for at least five years at the time he or she files a claim.
Immediate Concerns for Employers:
- Significantly, the Rule makes substantive changes to the WC/OD Act, which typically requires legislative approval and is not a matter for administrative rule making. In addition, the Rule appears to have been promulgated without proper notice.
- The new coverage includes a long list of employees, regardless of differences in occupations and likelihood of exposure in each occupation. The Rule may even apply the presumption to stay-at-home workers who should not face an increased risk.
- The Rule also seems to go beyond traditional workers’ compensation injuries, applying the presumption not only to workers who sustain injury, but also to workers experiencing a period of incapacity after exposure. This could be read to apply to furloughed workers who never actually contract the disease. Whether TTD benefits for these workers are covered under traditional workers’ compensation insurance policies is unknown, since most policies require bodily injury or disease to trigger coverage.
We will continue to keep you advised of developments. This change in law highlights the importance of adhering to good claims procedures so that any evidence of a “rebuttable presumption” may be discovered and noted. We also will keep you advised of any legal challenges or other Executive, Legislative, or Administrative developments.